Canada Poised to Punt Real Family Court Reform

November 26, 2018 by Robert Franklin, Member, National Board of Directors, National Parents Organization

Canada is not poised to make meaningful change to its divorce and custody laws. As I mentioned here, it’s poised only to make trivial changes to the wording of existing statutes. And Barbara Kay isn’t happy about it (Post Millennial, 11/23/18).

Kay of course has for many years been a redoubtable champion of equal parenting, so, when the Canadian Parliament once again simply punts the issue, she’s right to complain. So is everyone else in the country. After all, as Kay points out, it’s now been 20 years since the task force specifically appointed to make recommendations for reform did so. And in those 20 years, essentially nothing has been done.

Everyone agrees that government reforms on divorce law were necessary, as Canada’s Divorce Act has not been re-evaluated since it was passed in 1985.

Yes, you’d think that, with something as important as child well-being hanging in the balance, the august members of Parliament might want to actually do something. And they’re about to. They’re about to change the words “custody and access” to “decision-making responsibility” and “parenting time.” Just think: it only took them 20 years to accomplish that. Such a flurry of activity positively makes the head spin.

If they’d only take about 10 minutes and read Kay’s article, they’d have everything they need to make the right decisions about family law reform.

Shared parenting should be the default for custody

The elephant will only go away with a presumption in law of Shared Parenting – also known as Equal Parenting – as the default for custody (rebuttable in cases of abuse).

Shared/Equal Parenting means children spend literally equal, or near-equal time with each parent, unless a parent is a demonstrable risk to the child…

Winner-takes-all mentality around divorce litigation.

In family court litigation, mothers are overwhelmingly favoured to win sole custody. Everyone knows of this court advantage, which motivates women to refuse compromise and motivates fathers (especially those without the deep pockets to take an odds-against chance) to pre-concede defeat (i.e. they make this decision “in the shadow of the court”), and become visitors in their children’s lives.

That last is a vital point. Opponents of shared parenting occasionally claim that fathers don’t really want equal time with their kids post-divorce. They point to the fact that the huge majority of child custody cases are agreed to by the parents. “If Dad wanted equal custody, why isn’t that reflected in his agreement?” is the argument.

Kay’s point is the answer. Family judges’ pro-mother bias is well known and the great majority of fathers don’t have the money to fight out the matter in court, particularly since they figure the outcome will be the same whether they do or don’t. That commonsense approach by fathers is backed up by the still-important study by Maccoby and Mnookin called “Dividing the Child.” In it they found that, even when fathers request custody, they only get it in about 9% of cases.

And of course,

Canadians support shared parenting

Every credible government survey on this issue, going back to 2000, indicates that Canadians strongly support Shared Parenting as the fairest and most child-friendly model. A 2017 Nanos poll indicated very firm support for Shared Parenting, regardless of age, gender, region and political affiliation.

That support generally runs between 70% and 80%, but Parliament casually ignores the will of the Canadian people.

And of course it ignores the science on shared parenting.

In a 2012 article published in The American Journal of Family Therapy, Kruk offers 16 evidence-supported Arguments for an Equal Parenting Responsibility Presumption in Contested Child Custody. Amongst them, Kruk shows how and why equal parenting:

preserves children’s relationships with both parents and vice-versa (about 30% of children have no contact with their non-custodial fathers);

reduces feelings of insecurity and rejection in children;

decreases parental conflict (40% of first-time incidence of family violence occurs after an adversarial separation);

respects children’s wishes (70% of children of divorce approve equal parenting, as do 93% of the 8% of children raised in ESP homes);

reduces incidence of ignorance- or bias-based judicial decisions;

reduces the risk of parental alienation that can and does flourish under sole custody conditions;

guarantees what should be children’s and parents’ Charter rights to each other’s love and companionship, as enunciated in the United Nations declaration regarding the rights of children.

Many other social scientists have studied this subject in depth, and the evidence is in: Shared Parenting by fit parents promotes the best outcomes in child well-being measured on multiple axes.

A meta-study including findings by 110 experts concludes that Shared Parenting is the best model, even for toddlers and infants, and even in instances where there is high conflict between parents (but no abuse of children by either).

This [winner-take-all] model is supported by two groups, both of whom are stakeholders and not disinterested: most family law lawyers who benefit financially from litigation, and feminist groups who frankly advocate for the paradigm that tends to reward women, in the belief that fathers are less important to children than mothers.

I must quibble with that last statement. Sole custody doesn’t “reward” women; far from it. It limits their earning ability and increases their stress. With so much of their time spent on childcare, they’re unable to save as much for retirement or advance as much in their careers. It keeps them financially dependent on their ex. The only “reward” they receive is the obligation of 80-100% of the childcare responsibility. All else is negative.

Here in the U.S., the move toward sanity in family courts is very much under way. Canada does many things that can be considered better than what we do in the U.S. Sadly, family law and practice aren’t among them.